Unauthorized Spending, Sacred Cows, and the Need for Training Wheels

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.

October 20, 2016 - 11:58 — William Christian

Citizens Against Government Waste (CAGW) has long advocated for reforms to the way that Congress does business, focused on senators and representatives who turn blind eyes to ever-increasing spending. One such reform, introduced on March 14, 2016 by Rep. Cathy McMorris Rodgers (R-Wash.) is H.R. 4730, the Unauthorized Spending Accountability (USA) Act.

The USA Act, also described in the March 2016 WasteWatcher, seeks to end the practice of appropriating funds for programs that are no longer authorized. In a nutshell, the bill puts all unauthorized programs on the path to sunset after three years, subjecting them to a rolling sequester. The programs would continue to receive 90 percent of current appropriations after the first year, with continued funding at 85 percent in the second and third years; then, if the program is still not reauthorized, it would be sunset at the end of the third fiscal year after expiration, with no funding in the fourth year and beyond.

According to the Congressional Budget Office (CBO), in fiscal year (FY) 2016, Congress appropriated $310.4 billion to 256 programs and activities that are no longer authorized. Two decades ago, unauthorized programs, at $35 billion, represented 10 percent of the discretionary budget; today, they amount to 30 percent of total discretionary spending.

Of course, anytime that some special interest’s ox is on the verge of being gored, then its status-quo stalwarts emerge from the rotting Washington woodwork. In this case, it is the leftist “think tank,” Center for Budget and Policy Priorities (CBPP), which published its critique, “Proposals to Address ‘Unauthorized Appropriations’ Would Likely Do More Harm Than Good: Programs Already Receive Congressional Scrutiny and Direction” by David Reich, on August 31, 2016.

To counter the notion that unauthorized programs are not receiving sufficient congressional oversight, Reich offers the following argument: simply by getting funded each year, whether by direct, “regular order” appropriation or by continuing resolution (essentially, in the absence of a completed annual appropriation process, continued funding at the previous year’s levels), the programs have thus passed congressional muster. “Every unauthorized appropriation is nevertheless an appropriation – that is, a legal directive from Congress to the executive branch to spend a specific amount of money for specified purposes during a particular year or years. If Congress has appropriated funds for a program for a given year, it has exercised its power of the purse to direct that program to operate that year.”

This perspective misses the point. Such a learned hand as Mr. Reich seems to have forgotten one of the basic truisms of life on Capitol Hill. As reiterated by Sen. John McCain (R-Ariz.) in his memoir, Worth the Fighting For, co-authored with Mark Salter, “There are, it is often observed, three parties in Congress, Republicans, Democrats, and appropriators.” In other words, traditional philosophical boundaries tend to disappear whenever a member of either party gets appointed to the Appropriations Committee of his or her respective chamber. Typically, after ascension to the spending panels, the question devolves from how to spend money and for what purpose (i.e., authorizing) to simply a matter of how much to spend (i.e., appropriating), would-be budgets and real-life debt and deficits be damned.

By enabling spendthrift behavior, i.e., the idea that it is okay for the buck to start and stop with the appropriations process alone, the CBPP paper dismisses the importance of authorization. Whether or not the CBPP argument has merit, it assumes that the annual appropriations process is reliable and that such oversight is exercised judiciously (and on time) each year. Unfortunately, experience demonstrates otherwise.

In 2016, during his first full year at the helm of the House of Representatives, Speaker Paul Ryan (R-Wis.) articulated his much-vaunted goal of returning to regular order (i.e., acting on 12 separate appropriations measures with adequate time for passage by the House, consideration by the Senate, resolution of differences in conference, and forwarding to the White House), but only one such bill made its way to securing the President’s signature. While the 12 subcommittees that comprise the so-called “appropriations party” in each chamber of Congress are more accustomed to achieving consensus at the committee level (whether Republican or Democrat, they all like to spend money), finding agreement on the floor of either the House or the Senate is a much more daunting challenge.

For example, all 12 appropriations bills have been approved in the appropriations committees of their respective chambers this year; however, only five of those have passed the House, and three have passed the Senate. Of those, only one spending measure, the Military Construction and Veterans Affairs (MilCon/VA) bill, covered the same subject matter in both chambers. They were therefore the only appropriations legislation eligible for consideration by a conference committee to resolve differences between the two versions. The other four bills that passed the House (Defense, Financial Services, Interior, and Legislative Branch appropriations) did not correspond to the other two funding bills that passed the Senate (Energy and Water Development, Transportation), so no bicameral reconciliation of companion bills was possible before the new fiscal year began on October 1. Therefore, the avoidance of another government shutdown depended on all other government operations being funded, via continuing resolution at the prior year’s funding levels, as an amendment to the MilCon/VA bill.

If this is CBPP’s excuse for what passes as congressional oversight, then it is a rather poor one. After all, there are five Senate authorizing subcommittees and nine House authorizing subcommittees that include “oversight” and/or “investigations” in their name. There are no similar appropriations subcommittees.

One case in point involves intelligence funding, but the example can be extrapolated across all committees. As described in a 2009 memorandum by Eric Rosenbach and Aki Peritz at Harvard’s John F. Kennedy School of Government, “When the intelligence oversight committees are unable to pass authorizing legislation, they lose a critical oversight tool. For the past several years, intelligence authorization bills have not become law and the Appropriations Committees have included a "specific authorization" clause in the bill to provide [intelligence community (IC)] funding. Essentially, the Appropriations Committees can disburse funds for activities that have not been explicitly authorized by the Senate and House Intelligence Committees. Since the Appropriations Committees do not have the same expertise and number of staff focused on intelligence issues, some believe that they may be ill-suited to provide rigorous and comprehensive oversight of the IC.”

In a further criticism of the USA Act, the CBPP attempts a semantic argument. The author attempts to distinguish between “authorization of programs” and “authorization of appropriations of programs.” According to Mr. Reich, “In this context, ‘unauthorized’ usually refers to the lapsing of legal language that House rules say must exist before the House may consider annual appropriations for an agency of program – even though the underlying law creating and governing the agency or program remains in effect.”

For CAGW, this is virtually a distinction without a difference. To be sure, it is understood that a long-standing authorization of an underlying program may exist, while a concurrent authorization of appropriations may have lapsed. Here again, though, CBPP misses the point. Simply put, the existence of a one-time authorization of a program or agency or whatnot (no matter how permanent, legislatively speaking) should not imply that it (or any program) is immune from periodic review. By the same token, to continue spending on something simply because “it’s always been done that way” only underscores the need for urgent, disciplinary reform of congressional processes gone awry.

Then, CBPP trots out the “sacred cow” defense. “Few, if any, of the agencies and programs accounting for the vast majority of unauthorized appropriations fit the description of ‘zombies well past their expiration date.’ It’s hard to believe that Congress intended the FBI, NIH, NASA, embassies abroad, and the Weather Service to expire and shut down – even if it failed to meet the schedule it set for itself for renewing their authorizations of appropriations. If Congress did intend for them to terminate, it presumably would have used clear language saying so.” Mr. Reich has created a bit of a straw man here: even deficit hawks like CAGW can agree that certain programs with lapsed authorizations, like the FBI, are necessary to the operation of the country. However, the importance of these programs is not an excuse for bad governance; to the contrary, it is the very rationale for more thorough review by Congress. Moreover, many programs and agencies with expired authorizations have been among the least cooperative in dealing with Congress, since their virtually automatic renewal of funding has removed any incentive for them to be responsive to their overseers.

The bottom line should be, well, the bottom line. Either a program is worthy of regular oversight, or it is not worth funding. If a program is integral to the basic function of government, then it is important enough to receive prioritized attention by Congress. And if a program is not worth the Congress’s time to perform periodic review, then it is not worthy of the allocation of deficit-funded resources.

In reality, continuing to fund programs, without authorization and concomitant oversight, is an abdication of Congress’ Article I authority. By refusing to periodically and systematically review all functions of government that are creations of Congress (and thus subject to congressional oversight), the legislative branch is relinquishing to the executive branch the ability (via each agency’s regulatory regime) for unelected bureaucrats to run roughshod over the will of the people.

Unauthorized programs are not just small, obscure programs. Consider the State Department, which has not been reauthorized since 2003: the lack of a regular authorization process facilitated the continuation of problematic policies, potentially contributing to tragedy at the U.S. consulate in Benghazi in 2012. The Bureau of Land Management (BLM) has not been reauthorized since 1996. Paradoxically, the BLM restricts grazing rights to protect the Mojave Desert Tortoise, notwithstanding the role of the cattle’s manure as nutrients for the turtle, while granting waivers for solar energy projects that make the area too hot for the threatened species to survive. Hopefully, restoration of commonsense oversight by Congress would put an end to such incoherent practices. Without authorization since 2009, the Department of Justice has been unresponsive to congressional leaders, while more than $60 billion in Veterans Affairs programs have expired authorizations (some dating back to 1998).

Sooner rather than later, federal lawmakers, who are paid handsomely at $174,000 annually (roughly three times more than the taxpayers who pay their salaries, from a median U.S. household income of $56,000 per year), should be shamed into earning their paychecks. They sought, and were sent to Washington for, the privilege and responsibility of making tough choices.

But time and again, they disappoint.

In a perfect world, members of Congress would not need such a vehicle to accomplish their basic duties; indeed, current rules provide all the parameters necessary to do the right thing. But by repeatedly waiving them to avoid tough fiscal decisions, the rules are the exceptions. Members of Congress have demonstrated that, left to their own devices, they are incapable of any real fiscal discipline. So, with her leadership on the USA Act, Mrs. Rodgers has set the perfect world aside and introduced a viable set of training wheels, to restore the rigor required to get the nation’s fiscal house back on track to solvency.